January 14, 2009

The Movable Feast of "Torture"

Hatched by Dafydd

At last, the Democrats believe they finally have "proof" of what they have contended all along: The Bush administration "tortured" at least one detainee at the Guantánamo Bay Detention Camp!

Their star witness is Susan J. Crawford, a fifteen-year veteran of the Court of Appeals for the Armed Forces; according to the New York Times, Crawford is "the convening authority of military commissions," "the senior Pentagon official in the Bush administration’s system for prosecuting detainees." She recently gave an interview to Bob Woodward of the Washington Post, and the Post and Times have really gone to town on it. Liberals will be dining out on Crawford's admission for years and years, as they try to paint the adminstration of George W. Bush as out of control torturers, abusers, molesters, warmongers, and Constitution-shredders.

But the reality is far more quotidian: As with nearly every other example of top government officials determining, concluding, or holding that terrorist detainees were "tortured," what Crawford's decision not to prosecute the "victim" via the military commissions actually reflects is the ever-shifting sands of what legally constitutes torture in the first place.

The facts, as the elite media see them, via the Times:

The public record of the Guantánamo interrogation of the detainee, Mohammed al-Qahtani, has long included what officials labeled abusive techniques, including exposure to extreme temperatures and isolation, but the Pentagon has resisted acknowledging that his treatment rose to the level of torture.

But the official, Susan J. Crawford, told Bob Woodward of The Washington Post that she had concluded that his treatment amounted to torture when she reviewed military charges against him last year. In May she decided that the case could not be referred for trial but provided no explanation at the time.

“His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution, Ms. Crawford was quoted as saying in an article published in The Post on Wednesday.

First, it's critical to remember who, exactly, Mohamed Mani Ahmad al-Kahtani is. He is generally acknowledged to be the missing "20th hijacker" who was supposed to be the fifth man on the hijacking team on United Airlines flight 93, along with Ziad Jarrah, Ahmed al-Haznawi, Ahmed al-Nami, and Saeed al-Ghamdi. (The other three planes hijacked -- United flight 175 and American Airlines flights 11 and 77 -- each contained a five-man Einsatzgruppe). Kahtani was "muscle," one of the dim-witted thugs whose job was to brutally suppress any resistance by the passengers during the ritual human sacrifice of thousands.

We note that although Crawford won't let the case be prosecuted, she emphatically does not suggest that the evil mass-murderer-wannabe Mohamed Kahtani be released. "There’s no doubt in my mind he would’ve been on one of those planes had he gained access to the country in August 2001.... He’s a muscle hijacker.... He’s a very dangerous man. What do you do with him now if you don’t charge him and try him? I would be hesitant to say, ‘Let him go.’" But Crawford is the only Bush administration official to conclude that we tortured Kahtami. So the next question is, What is "the legal definition of torture" anyway?

The United Nations General Assembly enacted a Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1984; this included (as one might expect) a definition of torture:

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

This would ban not only obvious torture, such as Saddam Hussein regularly engaged in (Iraq was not a signatory), but even any form of questioning that coerced, frightened, or indimidated detainees into revealing information they would rather keep secret; it would essentially ban any interrogation harsher than polite asking.

But are we legally bound by that definition? We signed the convention in 1988, and it was ratified by the Senate in 1994... but it was ratified with a list of "reservations" and "understandings":

  • First, we held that the convention's reference to "cruel, inhuman or degrading treatment or punishment" would be interpreted in the United States as, and was only ratified under the definition of, "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."

In other words, we officially and formally rejected the wider, expansive defintion of torture, inhuman treatment, or degrading treatment. I'm not a lawyer, but I don't see how the U.N. defintion can legally be enforced here.

In other "reservations" to and "understandings" about the ratification, we:

  • Rejected article 30 (1), which allowed any country to take a dispute about torture to the International Court of Justice for adjudication or arbitration;
  • Enunciated our own definition of torture:

    That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

Note that this definition would not, it appears, ban waterboarding; while waterboarding does involve "the threat of imminent death," there is no evidence for (and a great deal against) the proposition that its use induces "prolonged mental harm." In fact, those who are waterboarded, either in earnest or in training, appear to fully recover within a minute or two of the procedure ending.

  • Expressed our understanding that any sanction would be enacted according to U.S. law, not tried by an international court, unless in a particular case we agree to do so;
  • Fiddled with the rules of when and to where we could rendite prisoners, interpreting "where there are substantial grounds for believing that he would be in danger of being subjected to torture" to mean "more likely than not that he would be tortured";
  • Noted that international law does not prohibit the death penalty, and that we do not consider capital punishment to be torture;

And finally, the most important proviso attached to our ratification:

  • "That the United States declares that the provisions of articles 1 through 16 of the Convention are not self-executing."

Articles 1 through 16 comprise Part I of the convention, which defines torture and details all the legal procedures available to supposed victims and the sanctions that must be applied to supposed perpetrators. Had the (Democratic!) Senate not included this final, important caveat, then all of the provisions of Part I would have attained the legal status of the Constitution itself, and supposed victims could sue for injunctive relief (a court order requiring the U.S. government or a state government to do X, Y, or Z to pull themselves into compliance with "international law") whenever they claimed any jot or tittle of the U.N. definition had been violated... spelling the end of U.S. sovereignty whenever we didn't obey the International Court of Justice.

Whew! Let's return from our forray into the jungle of domestic and international law and the Convention Against Torture to Kahtani himself. What exactly did we do to him at Gitmo? According to the Times:

Military documents show that Mr. Qahtani’s repeated interrogations at Guantánamo in 2002 and 2003 included prolonged isolation, sleep deprivation, forced nudity, exposure to cold and involuntary grooming. He was also forced to dance with a male interrogator and to obey dog commands, including “stay,” “come” and “bark.” [I can only assume that "involuntary grooming" means forcing the malodorous bastard to wash, and perhaps washing him with a firehose if he refuses.]

A Pentagon inquiry in 2005 found that the methods were “degrading and abusive.”

Prolonged isolation sounds suspiciously like solitary confinement, which is definitely not considered "torture" under American law. Sleep deprivation is somewhat harsher; but it's routinely used even by domestic police interrogators, at least so I understand. Again, doesn't seem to be unconstitutional.

Exposure to cold... well, depends how cold. Since this is all taking place in Guantanamo Bay -- in Cuba -- unless they're putting him in a meat freezer, I can't imagine it's all that cold. Probably just cold enough to be uncomfortable for a thug who grew up in Saudi Arabia. And of course, involuntary grooming is a staple not only in American prisons but also the American military, American restaurant kitchens, and American public schools... which last also sometimes require involuntary groin protection in the same gym classes that do the involuntary grooming business (showers).

Forcing him to dance with men and even obey doggie commands seems merely irritating; I cannot imagine that it would produce "prolonged mental harm," except insofar as, being a Moslem -- a religion that tends to inculcate virulent misogyny -- forcing Kahtani into a female role might make him feel inferior and could lead to "shrinkage."

Finally, we have the only interrogation technique that might -- might -- constitute degrading treatment (contrary to popular belief, even in the Wahabbist and Salafist sects of Islam, soap and water are not considered "degrading"): forced nudity. But even here, while it may be humiliating, is it really credible that laughing at his insignificant manhood would produce "prolonged mental harm?"

I believe that Crawford herself more or less agrees with the specifics of the above, differing only on the impact of the totality. In the original Woodward interview, here is a more complete version of her remarks:

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.
(The Post also gives a more complete accounting of how he was interrogated, which I quote here to be completist but relegate to the "slither through" to not interrupt the narrative.)

So if it's really dicey whether any of this constituted torture, why does the Pentagon claim it did? Well, in fact, it didn't until quite recently; several previous investigations exonerated the interrogators:

In a statement Tuesday night, the Pentagon said that more than a dozen prior investigations had concluded that the interrogations were lawful.

“However, subsequent to those reviews,” the statement said, “the department adopted new and more restrictive policies and improved oversight procedures for interrogation and detention operations.”

“Some of the aggressive questioning techniques used on al-Qahtani,” the statement continued, “although permissible at the time, are no longer allowed in the updated Army field manual.”

And there you have it -- our interrogators were not engaging in torture as we officially understood that word at the time; rather, we have retroactively changed the definition to make what we did torture ex-post facto. And that is what Susan Crawford meant when she said, with important caveats added back in, "His [earlier] treatment met the [years later] legal [re-]definition of torture."

That is the nut of liberalism -- moving the goalposts and condemning by retroactive judgment. I'm not claiming that Susan Crawford, long-time military appellate-court judge, is a liberal; she clearly is not. But she does suffer from Lindsey Graham derangement syndrome (or JAGitis), seeing everything through a judicial prism.

For example, Crawford believes we should never coerce any sort of testimony; after all, "you don't allow it in a regular court," she says... either unaware of or ignoring the irreducible facts: (a) We need intelligence to keep Americans safe from terrorist attack, but (b) most terrorists will not voluntarily cough up such information.

So what are we to do? Crawford has no answer. She knows we should never coerce testimony, but she also knows we must somehow extract all the intel we need to thwart attacks, and she doesn't appear t notice the glaring contradiction between those two goals. ("I must... but I cannot... but I must!") Certainly she makes no effort to weigh the importance of each and decide which must prevail in a given circumstance.

So she is not a liberal, but she is also not a counterterrorism hawk. However, it is liberals like Bob Woodward and the editors at the Post and the Times who have seized upon her unhelpful and misleading claim that we "tortured" detainees; and it is liberals who have used that charge as a bombast to cripple the war against the Iran/al-Qaeda axis.

At least Crawford has the decency to agonize over her pronouncement; Democrats are practically beside themselves with triumph and glee, if these articles are any indication.

But that's the liberal way, whether it's redefining torture after the fact in order to accuse the Bush "regime" of war crimes -- or redefining the word "lie" to include "statement later proven to be partially in error;" setting the bar a mile high for their political enemies yet an inch high for themselves; redefining "science" to mean "accepting without question liberal shibboleths on 'sillicon disease,' 'secondhand smoke,' and of course the deadly poison gas carbon dioxide; and redefining what is and is not a legally cast vote in a presidential election. More than any other idiosyncratic form of argument, liberals love Argument by Tendentious Redefinition; it fits perfectly into their traditional disassociation from the "reality" they reject as too limiting.

And that is just what they are engaging in here, with the reluctant but useful connivance of a mushy-moral, compassionate-conservative military jurist who cannot separate what we must do to collect intelligence from what we should do if we plan to try terrorists in civilian court... which is a great argument for not bothering to try terrorists in civilian court, an important point that Supreme Court Justice Anthony Kennedy ought to have considered before joining the liberals in the Hamdan and Boumediene decisions.

From the Woodward article in the Washington Post:

[Kahtami's] interrogation took place over 50 days from November 2002 to January 2003, though he was held in isolation until April 2003.

"For 160 days his only contact was with the interrogators," said Crawford, who personally reviewed Qahtani's interrogation records and other military documents. "Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister."

At one point he was threatened with a military working dog named Zeus, according to a military report. Qahtani "was forced to wear a woman's bra and had a thong placed on his head during the course of his interrogation" and "was told that his mother and sister were whores." With a leash tied to his chains, he was led around the room "and forced to perform a series of dog tricks," the report shows.

The interrogation, portions of which have been previously described by other news organizations, including The Washington Post, was so intense that Qahtani had to be hospitalized twice at Guantanamo with bradycardia, a condition in which the heart rate falls below 60 beats a minute and which in extreme cases can lead to heart failure and death. At one point Qahtani's heart rate dropped to 35 beats per minute, the record shows.

Hatched by Dafydd on this day, January 14, 2009, at the time of 6:34 PM

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The following hissed in response by: scrapiron

I don't know who Crawford is and don't want to know where she lives. I gave up booze 20 years ago but might slip back into the habit. A drunk will sometime do things while drunk they wouldn't consider when sober.
I expect a lot of Vet's who are determined to be suffering from the phony stess syndrome to use it when they get revenge. No way they can be convicted for getting rid of their enemies who happen to be liberals living in the U.S. Notice I don't call them (liberals) Americans, they are further from being an American than Chavez and Putin.

The above hissed in response by: scrapiron [TypeKey Profile Page] at January 14, 2009 6:55 PM

The following hissed in response by: Karl

Interestingly enough, one of the more hysterical screed writers I follow is an Army interrogator who actually does define "torture" as "any physical or mental coercion -- any". He seems to consider anything beyond polite asking to be torture.

I've asked how anyone can detain someone long enough to ask him polite questions without at least coercing him to stay around -- thereby torturing him. He refuses to answer.

The above hissed in response by: Karl [TypeKey Profile Page] at January 14, 2009 7:29 PM

The following hissed in response by: West

"Forced Grooming" - He's a Muslim. The shaved off his beard.

BFD. I think I just shed a tear.

The above hissed in response by: West [TypeKey Profile Page] at January 14, 2009 9:09 PM

The following hissed in response by: Chris Hunt

Congratulations to the media for finally ending these horrific procedures just in time for the One to assume command. Do these people even think beyond today?

The above hissed in response by: Chris Hunt [TypeKey Profile Page] at January 15, 2009 11:42 AM

The following hissed in response by: Chris Hunt

Congratulations to the media for ending these horrific procedures just in time for the One to take command. Do these people ever think beyond today?

The above hissed in response by: Chris Hunt [TypeKey Profile Page] at January 15, 2009 11:45 AM

The following hissed in response by: Doc-obiwan

Waterboarding is not torture. It causes no physical harm, no lasting mental harm. It is NOT ripping out fingernails or teeth, or the like. It *IS* panic-inducing, frightening and very effective. I was waterboarded, in Special Forces training long ago. It is not an experience I'd care to repeat.

But it is not torture.

The above hissed in response by: Doc-obiwan [TypeKey Profile Page] at January 15, 2009 1:21 PM

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